Regents of University of California v. Superior Court

VAN DYKE, P. J.

Two petitions for writs of prohibition filed in this court seek identical relief against the two Judges of the Superior Court in and for the County of Solano, that is, restraint from proceeding to hear a petition filed in the matter of the estate of Hazel S. Lagersen, deceased, pending in that court.

All matters in the estate proceedings had been heard before the Honorable Harlow V. Greenwood, Judge of said court, and the estate proceedings had covered an extended period of time during which numerous matters had been heard before Judge Greenwood and decided by him. During January of 1960, William H. McPherson, administrator with the will annexed, filed in said estate proceedings his second and final account and report of special administrator; his first and final account and report of administrator with the will annexed; a petition for final distribution; his petition for allowance of extraordinary fees to himself as special administrator and as administrator with the will annexed; and his petition for allowance of extraordinary fees to Henry C. Clausen as attorney for such special administrator and administrator with the will annexed. Objections were filed thereto by the University of California, one of the residuary legatees, with respect to re

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quested allowances for fees. The entire matter came on regularly to be heard before Judge Greenwood. There were in attendance, among others, petitioner McPherson, his counsel, and counsel for the university. When the matter was called for hearing, counsel for the university filed an affidavit for the purpose of peremptorily disqualifying Judge Greenwood. The record does not disclose formal action taken in response to the disqualification affidavit, but it does appear that the hearing before Judge Greenwood was ended, that parties and counsel proceeded from the courtroom of Judge Greenwood to the courtroom of the Honorable Raymond J. Sherwin, also a judge of said court, who took no evidence at that time, but continued the hearing to March 21, 1960. On that date considerable testimony was taken before him and the matter further continued to April 11th, when further evidence was taken and the matter again continued to May 19, 1960. Before that date arrived a motion was presented to Judge Greenwood by McPherson to strike from the files the declaration of disqualification theretofore filed by counsel for the university and for an order restoring the proceeding to the department presided over by Judge Greenwood. Over the objection of the university, Judge Greenwood granted the motion to strike and ordered the matter transferred from Judge Sherwin’s department to his own.